Lloyd-Jones: Scheme was rough and ready
A miner who lost the chance of compensation due to the negligence of his solicitors is entitled to damages because later evidence indicating that he was not eligible was irrelevant, the Supreme Court has ruled.
However, the court did not take a view on the main issue before it: the admissibility in a professional negligence action of subsequently acquired evidence relating to the value of the original claim.
This was because the original claim was run under the special rules of the government compensation scheme for vibration white finger (VWF), rather than a regular tort claim.
Giving the unanimous ruling of the Supreme Court, Lord Lloyd-Jones said recoverability under the scheme did not depend on entitlement at common law “nor did it correspond with what might have been the outcome in conventional civil proceedings”.
Edwards v Hugh James Ford Simey (a firm) is the latest in a long line of negligence cases to come out of the miners’ compensation scheme, the fallout from which has dogged the profession for around 15 years.
It is another involving a former miner who was awarded general damages but then, on negligent advice, decided not to pursue a services claim, which would compensate for everyday tasks he could no longer carry out himself as a result of the injury, such as gardening, DIY and window cleaning.
The claimant, Thomas Watkins, died in 2014. His daughter has continued the claim on behalf of his estate.
In February 2003, Welsh firm Hugh James (as it is now called) received an offer of £9,478 “in full and final settlement” of the claims under the scheme.
By then, Mr Watkins had lodged his claim for services. If he accepted the offer, he would receive the balance of the money and the services claim would be at an end. If he wished to pursue it, however, he would receive a further interim payment.
He accepted the offer on what it was accepted was negligent advice from Hugh James – the recorder at first instance found that, if Mr Watkins had received appropriate advice, he would probably have decided to pursue his services claim.
On damages, the recorder found that, on the basis of a medical report commissioned jointly for the purposes of the negligence claim from Mr Tennant, a consultant vascular surgeon, the services claim had no chance of success.
However, the Court of Appeal unanimously overturned this. Lord Justice Irwin said the assessment was “of the value of the lost claim, not a trial of the original cause at the time of the negligence claim”.
In the Supreme Court, Lord Lloyd-Jones acknowledged that the compensation scheme was “rough and ready”, intended to provide “an efficient and economic system for dealing with a huge number of claims in a way that was broadly fair”.
Eligibility for a services claim was based on the initial medical assessment made on whether the miner was suffering from VWF; a second assessment only looked at whether there were any co-morbid conditions which would have prevented the claimant from undertaking the tasks covered by the services claim.
As a result, Lord Lloyd-Jones said, Mr Tennant’s report was irrelevant because, under the scheme, it would never have been commissioned; the recorder erred in taking it into account.
“In these circumstances I am unable to accept that the services claim had no chance of success and that the claim lost was of no value…
“The payment of a services award to Mr Watkins would simply have been a consequence of the way in which the scheme operated and was intended to operate.
“We are not concerned here with a claim in conventional civil proceedings but with a scheme possessing unusual features. The evidence in question, the report of Mr Tennant, is simply not relevant when constructing the counterfactual situation which would have arisen if Mr Watkins’s solicitors had fulfilled their duty to him.”
Lord Lloyd-Jones dismissed the appeal and remitted the matter for assessment of the value of the loss of the opportunity to pursue the services claim.
The claimant’s solicitor, Susan Hargreaves, a consultant at Manchester firm BPS Law, said the ruling confirmed what claimant lawyers have always thought – “that claims handled under a scheme must be treated differently… To then seek to apply conventional civil procedure rules is counterproductive and goes against the purpose for establishing a scheme in the first place.”
The claimant instructed Richard Copnall of Parklane Plowden Chambers, who said: “In the immediate future, the decision provides much needed clarity for those litigating solicitors’ negligence claims arising out of the British Coal scheme.
“It prevents defendants and their insurance from challenging the quantification of such claims on the basis of medical, or other, evidence that was not available at the time of the original claim under the scheme. This is likely to lead to the prompt settlement of the many claims that have been stayed or stalled, awaiting judgment in this appeal.
“In the longer term, the principle is likely to be applied to claims arising from other schemes and, perhaps, to professional negligence claims in general.”
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